Colleges and Universities Increasingly Face Liability After Title IX Hearings

By: Jonathan Simms

A new report published in the Washington Post revealed that colleges and universities are increasingly being named as defendants in lawsuits filed by students that recieved disciplinary action after Title IX Hearings.  Under Title IX, federally funded schools must ensure that students are not denied or limited in their ability to participate in or benefit from the school’s educational programs or activities on the basis of sex. A school violates a student’s rights under Title IX regarding student-on-student sexual violence when the following conditions are met: (1) the alleged conduct is sufficiently serious to limit or deny a student’s ability to participate in or benefit from the school’s educational program, i.e. creates a hostile environment; and (2) the school, upon notice, fails to take prompt and effective steps reasonably calculated to end the sexual violence, eliminate the hostile environment, prevent its recurrence, and, as appropriate, remedy its effects.

In order to protect themselves, the schools conduct a hearing to determine if disciplinary action is warranted and the extent of the action that should be taken.  The hearings are not subject to the evidentiary standards required in criminal or civil courts.  Students are not allowed to have representation by counsel during the hearing.  Moreover, the standard of proof is at a minimal level. Prior to taking disciplinary action, the school must only find that the allegations were proved by a preponderance of the evidence.  This is a less stringent standard than what has been required in the past.  As a result, the accused students go into a hearing in which a negative finding against them is more than certain to occur.

As a result, students that have been expelled or received other disciplinary actions are responding with claims of denial of due process. The increase in these actions have been dramatic.  The article reveals that between 1990 and 2010 only 15 such lawsuits were filed.   Since 2011 there has been a total of 150.  This increase can certainly be attributed to the lowering of the standard of proof required to trigger disciplinary action.  The schools have responded by settling many of the lawsuits at a frantic pace.  The post article reveals that some of the settlements are as high as $250,000.

How can universities protect themselves, while also complying with the mandates of Title IX? One answer is for colleges and universities to retain independent legal counsel to sit in on the hearing to ensure adherence to due process.  Many schools will engage their in-house counsel to observe the hearings. This is not a sufficient remedy. The in-house counsel is a representative of the school and is thus not an independent, unbiased party.  An independent attorney advisor can observe, intervene, and advise when fundamentals of due process are not being adhered to.  There have been many schools, such as the University of Virginia, which have already taken this step.

As the lawsuits continue to increase, it would be prudent for all colleges and universities to engage counsel as independent advisors.  If you would like more information on Title IX hearings and how they effect schools and students, please contact the Simms Firm for additional information.

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